Study on the Possibilities for ENGOs to Claim Damages on Behalf of the Environment in Four Selected Countries – Synthesis Report – Preliminary Observations

Study on the Possibilities for ENGOs to Claim Damages on Behalf of the Environment in

Four Selected Countries – Synthesis Report –

Preliminary Observations

8th Meeting of the Task Force on Access to Justice Under the Aarhus

Convention (Geneva, 15-16 June 2015)Dr. Elena Fasoli

Queen Mary University of London

Dr. Elena Fasoli - Queen Mary University of London

Preparing the first draft of the study including the summary report and the chapters per each countries and circulating it to the Chair of the Task Force, the UNECE secretariat and national experts

Leading Expert 1 August 2015

Commenting on the first draft of the study (comments from national experts should be sent to the leading expert, TF Chair and the UNECE Secretariat)

TF Chair, UNECE secretariat and national experts

15 August 2015

Revising the first draft of the study taking into account comments received and preparing the second draft

Leading expert 22 August 2015

Circulating the second draft to national focal points for comments

UNECE secretariat 24 August 2015

Commenting on the second draft National focal points, TF Chair and UNECE secretariat

14 September 2015

Finalizing and editing the study taking into account comments received

Leading expert in consultation with TF Chair and UNECE secretariat in consultation with national experts (if needed)

1 October 2015

Releasing the final version of the study on the relevant TF webpage: http://www.unece.org/env/pp/tfaj/analytical_studies.html

UNECE Secretariat Immediately

Countries Covered

Anke Houben and Chris Backes, Maastricht University

Jessica Makowiak, Université de Limoges

Elena Fasoli, Queen Mary University of London

Alexandra Aragão, Universidade de Coimbra


Liability of operators that caused damages to the environment and the

role played by ENGOs

Liability under the Environmental

Liability Directive (ELD)

Civil Law Remedies (including joining civil actions to on-

going criminal proceedings)

a) Costs incurred by

ENGOs

b) Moral Damage and

Purely Ecological Damage


The Role of the Operator and of the Competent Authority under the ELD

In all four Countries analysed the operator,

who operates or controls the occupational activity,

is liable for:

the environmental damage

the costs of the remedial measures

If the competent authority takes remedial measures itself, it is able to recover these costs

from the operator


The Role Played by the ENGOs

ENGOs have the right to:

submit observations

request the competent

authority to take action

In NL, FR and IT

In PL

ENGOs are not entitled to claim damages from the operator.

Through the civil actio popularis the ENGOs can exercise the civil action for damages asking for the full restoration of the environment from the operator.


Interesting Features of the Provisions Transposing the ELD in France and in Italy

FRANCE

When the operator that is liable for taking preventing and remedial measures cannot be identified, under exceptional circumstances

the ENGOs can suggest the competent authority to be allowed to take the remedial measures themselves.

ITALY

In case of inactivity of the competent authority the ENGOs are entitled to:

go before the administrative judge in order to appeal this inactivity and ask for the compensation of the injury caused by the delay in taking action.Dr. Elena Fasoli - Queen Mary University of

London


• All national reports confirm that this type of liability has a very limited practical application.

• One of the reasons is because only the environmental damage with “significant adverse effect” is relevant under the ELD.


Civil Law Remedies and the Role Played by the ENGOs

a) Costs incurred by ENGOs (material damage)

Damages for the costs incurred by the ENGOs in relation to the environmental damage.

b) Moral damage and “purely ecological damage”

These are both of a non-material character but:

• the moral damage is suffered by the ENGOs and the remedies granted by the courts usually take the form of an award of damages;

• the “purely ecological damage” is damage to the ecosystem in itself and the ENGOs can ask for a monetary reparation (or other forms of reparation such as declaratory judgments) even when they did not incur expenses.


a) Material Damage: The Netherlands

The ENGOs can:

• claim for the costs they made themselves: damages to stop (or to limit the consequences of) the pollution.

• Case-law is very scarce.• A disadvantage is constituted by the costs

of civil procedures.Dr. Elena Fasoli - Queen Mary University of

London

a) Material Damage: France The ENGOs can:

• claim direct, certain and personal damages (material damages).• Claim the expenses incurred in restoring the natural resource to its

initial status (e.g. expenses incurred for claiming and treating birds after oil spill).

• The remedies granted by the courts usually take the form of an award of damages, justifying the expenditure incurred by the accredited associations in order to carry out their activities effectively.

• These damages are not allocated and the associations can use them freely.

• In practice, it is very difficult to establish a direct and personal damage in environmental matters.

• There are risks of high costs of civil procedures only when the ENGOs need the assistance of a lawyer (which is mandatory only depending on the value of the trial and the nature of the jurisdiction).


The ENGOs can:

• exercise the civil action in order to protect the rights that have been compromised in the occurrence of the harm to the environment (e.g. costs of raising public awareness).

• They act “on their own behalf” for the protection of their interests (and not on behalf of the environment).

These actions are rarely pursued because of: – the high costs of the civil procedures.– Their length.

a) Material Damage: Italy


• The ENGOs can exercise the civil actio popularis asking for the remediation of the environment from the operator.

• When the remedial measures taken by the operator are not enough to restore the environment in integrum and/or the ENGOs incurred costs they can claim additional compensation.

• There are no costs associated to the exercise of the right to (civil) actio popularis by the ENGOs unless the claim is considered “manifestly groundless”.

a) Material Damage: Portugal


b) Moral Damage

FR, IT and PT

NL

The Courts consider that the failure to respect the environmental legislation by the operator undermines the efforts made by the ENGOs to protect the environment and give relevance to the discredit deriving from failure to pursue the statutory objectives of environmental protection. Remedies usually take the form of an award of damages.

This possibility seems to be not granted.


b) Purely Ecological Damage

Case-law is very scarce and the legislation is not sufficiently developed in order to specify the conditions and the modalities upon which this type of damage has to be repaired. In the very few cases available reparation took the form of compensation or a declaratory judgment.

Progressive recognition of the purely ecological damage in FR (by way of jurisprudential elaboration) and in NL (only in legal literature)

The ENGOs seem to be not allowed to exercise the civil action claiming the generic violation of the ecosystem in itself or the right to a healthy environment.

By contrast, in IT



• As an overall assessment civil procedures are rarely pursued.

• One of the reasons is because of the difficulties for the ENGOs to demonstrate a direct and personal damage in environmental matters.

• The scarcity of these judicial actions is also due to the high costs of the civil procedures.

• A tendency has been noted for the ENGOs to join civil actions to on-going criminal proceedings in order to avoid high costs.


Suggestions for Improvement

It could be fruitful:

• to reduce the costs of the civil procedures

• to consider the possibility to introduce a judicial or non-judicial remedy that entitles the ENGOs to challenge the inactivity of the competent authorities (should they fail to adopt remedial measures) so that to order them to take action

• to establish an online database containing information on the (on-going and past) investigations on cases of environmental damage and the costs that the competent authorities were able to recover from liable operators along with their utilisation

• to encourage operators to use financial insurances to cover their responsibility.


Thank [email protected]


Documents

Study on the Possibilities for ENGOs to Claim Damages on Behalf of the Environment in Four Selected Countries – Synthesis Report – Preliminary Observations